11.Glove DNA Exclusion for Both Brothers and Boat View Procedure
29 linesMR. WEINREB: There is one other thing that we would very much like to have resolved, and that is the issue of the DNA evidence. And the reason for that is that we have an expert, Jen Montgomery, who is a state police expert. She's the one who did the initial test. She's the one who will offer the evidence that Sean Collier's blood was found on the outside of the glove.
But the expert who did the further analysis of the mixture of DNA that was on the inside of the glove is a doctor named -- a scientist named Mark Perlin. He is an out-of-state paid expert who we would have to, you know, give advance notice to get him here at the appropriate time, we'd have to pay him. If there's a Daubert hearing, he'd have to be here in time for that, then he would also have to be here to testify and so on.
My understanding of the Court's ruling was that the government was precluded from putting him on about the Jahar Tsarnaev DNA in the glove because it wasn't sufficiently probative, so when we asked if that same logic would preclude evidence about the Tamerlan Tsarnaev DNA on the inside of the glove, it seemed like the Court was sort of reserving on that or wasn't sure.
THE COURT: No, I didn't know whether it was going to be offered, that's all. I would think it would be the same.
MR. WEINREB: It would be the same?
THE COURT: It would have the same linkage problem. Without a temporal connection, you couldn't tell that Tamerlan deposited his DNA the night of the murder or whatever either. I think it goes both ways. To the extent I was reserving, it was because I wasn't clear that there was going to be a suggestion that somebody would try to put that in.
MS. CLARKE: There was a question of opening the door. That's how it was left.
THE COURT: Right. Right. So I see it as I guess you say you do, which is if it didn't prove one, it doesn't prove the other. I think it has the same problem on both sides without some additional evidence that would put a temporal connection to it, that's all.
MR. WEINREB: So with that understanding, we're not going to have Mr. Perlin here.
THE COURT: Okay.
MS. CONRAD: May I just inquire, your Honor, about the procedure for the view? Because having done them both in state court and federal court and also having seen the boat, I think we all have -- you know, usually in a view you walk around and you say, "Look at this," "look at this," "look at this."
THE COURT: Right.
MS. CONRAD: Each juror is going to be going up, presumably, individually on a lift?
THE COURT: Either individually or in small groups. It depends on how big the lift is. When I looked at it, there were three of us that went up in the lift.
MS. CONRAD: And then I'm not sure how we're going to be pointing things out in that scenario unless we have some kind of presentation beforehand or something or maybe -- I don't know.
MR. WEINREB: Well, your Honor, I think that raises the question in part of what the purpose of this view is. I mean, the Court could easily direct the jurors' attention to where the writing is. My understanding was the purpose of the view was to give context for this writing. You know, there's another part of the boat that I'm sure is -- the defense is interested in pointing the jurors' attention to which is all the bullet holes in the boat.
THE COURT: That's what I assumed.
MR. WEINREB: Those all came in long after that writing was in place and it doesn't give any context to the writing because it happened, you know, well before -- he couldn't have been where the writing was or he wouldn't be alive today, so it is quite clear that he wasn't there.
THE COURT: This occurred to me on the spot so I don't know how good a thought it is, but perhaps you could each, if you wanted, specify particular features of the boat that should be directed to their attention and I could do that. I could say, "As you look at the boat you may want to pay attention to the bow, you might want to pay attention to how wide the boat is," and so on. You could have a list of some things. And then counsel would say nothing, basically, having given me the list, something like that.
If we did that in advance of anybody going up on a lift or anything like that, they would all have it in mind. I anticipate they would have their notebooks with them if they wanted to jot a note about something.
MS. CLARKE: They'll hear testimony later, so...
MR. CHAKRAVARTY: So the issue that raises, whatever the Court is directing them to is essentially an imprimatur of the relevance of whatever that is.
THE COURT: No, I don't think so. I could say "the parties have requested that you pay attention to the following items." I mean, it's inherent in any view, you know. You know, I direct the jurors' attention to the angle from the second floor window down to the street, you know, that suggests the relevance of that angle. But that's why you take a view. So I don't think it gives any stamp of approval, particularly if it's a joint list.
MS. CLARKE: May I ask if the wood with the scratched-out writings is back in the boat?
MR. CHAKRAVARTY: It's not in the boat. It's been taken out of the boat.
MS. CLARKE: So it probably should be replaced into the boat. There is a piece of wood where there was scratched-out words.
MR. CHAKRAVARTY: Then we'll be putting all the evidence back into the boat.
MR. WEINREB: I don't think we should be putting the evidence back into the boat. They won't be in exactly the same place they were in when they were seized. Something that was removed from the boat, I think that's --
MS. CLARKE: It's just a writing, that's all.
THE COURT: What is it?
MR. WEINREB: Part of the writing that was in the boat, most of it's on the inside wall of the boat, but there were also wooden slats in which the defendant essentially carved a writing. And it's the one that says, "Stop killing our innocent civilians and we will stop." Those sections were physically cut out of the boat two years ago and taken down to the FBI lab in Quantico. There's no problem with us bringing -- we're happy to bring them into court if the jurors want to see them, but to try and put them back in where they were --
THE COURT: Yeah, I think that's sufficient. If they're an issue, they can be seen here, okay?